Evidence of meeting #5 for Foreign Affairs and International Development in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was convention.
A recording is available from Parliament.
4:50 p.m.
Conservative
The Chair Conservative Dean Allison
Thank you, Mr. Wiebe.
We're going to start with Mr. Dewar, for seven minutes, please.
4:50 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
Thank you.
I want to thank our guests for providing their time to our committee.
Mr. Fraser, I'm going to start with you.
Correct me if I'm wrong, but you have some Canadian roots. Is that correct?
4:50 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
That's what I understand. So you're not that far away, really.
Just to put this in context, I'm with the official opposition. We're looking at trying to fix the bill because of some of the comments made. I just want to read into the record a comment that you have made:
Canada used to be in the forefront internationally in leading the world in good directions.... It is a pity the current Canadian government, in relation to cluster munitions, does not provide any real lead to the world. Its approach is timid, inadequate and regressive.
Those are strong words, Mr. Fraser.
Could you please explain why you feel this way about this legislation? Is it just what you put your finger on earlier around clause 11 of the legislation?
4:50 p.m.
As an Individual
Yes.
It is because of clause 11, which I would like to see withdrawn in its entirety. I don't think it's necessary, for reasons of the powers under article 21.
When you look at clause 11, it gives power to direct, to authorize, even to request the use of—acquiring, possessing, transporting, and endangering. There's nothing there that is excluded. Why then do all of this when the likelihood of these weapons being used is extraordinarily remote?
I don't think it's going to happen. It makes no strategic sense. I can't think of a conflict in which it would make tactical sense, and I think we should credit our American friends with not wanting to be tactically stupid.
We're going through all of this for really no reason. A good example is that I used to wish in my younger days that Australia could emulate and do more to support some of the leads that Canada took. Against that long historical background, to see Canada taking this attitude in relation to this particular convention is a great pity.
4:55 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
In light of your comments, it is troubling.
As was noted already in witness statements today, we had our former Chief of the Defence Staff here, and he commented on the interoperability. You were a former prime minister of Australia. You know how this works. You know that when your Chief of the Defence Staff says something, you want to take those comments and incorporate them into your decisions.
You have legislation right now in Australia. You've already mentioned that you've been in theatre and done interoperability with the Americans.
Is there anything like clause 11 in the Australian legislation?
4:55 p.m.
As an Individual
Our legislation is far from ideal. It does not go as far as your legislation.
But the governments that listen to generals don't always listen wisely. If President Johnson had listened to the CIA analysts in relation to Vietnam, for example, that war would probably have ended much earlier. The massive buildup of American troops, and the lesser, but significant buildup of Australian troops, may never have occurred. President Johnson listened to General Westmoreland, not the CIA analysts.
So when listening to the generals, politicians are still going to make their own judgment. In the end, they are political decisions.
4:55 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
I appreciate your comments on this, because it is a matter of weighing all opinions and then taking the right direction.
Mr. Wiebe, I want to go to you on the issue of article 21.
I think it's important for our committee to understand what you were saying. In the treaty article 21, sections 1 and 2 are very explicit. They tell us to not only look to enact legislation to ban cluster weapons, but also that it is also our responsibility to focus on other parties not signatories to the treaty to do the same. We heard from our Minister of Foreign Affairs at committee who was very up front. He wanted to see the world be rid of these munitions. We agree.
However, clause 11, as we just heard from former prime minister Fraser, goes the other way. It's interesting. Former prime minister Fraser said that in clause 11 of the bill, you have in essence a direction that would be allowed and almost encouraged to use the very weapons we're trying to rid ourselves of.
So are you telling us that article 21 of the treaty, sections 1 and 2, charges us with the responsibility for enacting legislation that would put pressure on our colleagues south of the border, in the United States, to actually follow us, and not just to accommodate the United States and its military actions?
4:55 p.m.
Professor of Law, University of St. Thomas School of Law, As an Individual
Yes, I would just read a phrase from paragraph 2 of article 21 that says:
Each State Party shall...make its best efforts to discourage States not party to this Convention from using cluster munitions.
All of the exceptions that have been written into clause 11 of the bill don't strike me as the best efforts to discourage states from using cluster munitions. It really seems to me that it not only encourages other states to use them, but also gives a pass for Canadian Armed Forces to use them in situations of interoperability.
4:55 p.m.
Conservative
The Chair Conservative Dean Allison
Thank you very much, Mr. Dewar.
We're going to move over to Mr. Schellenberger and Mr. Bezan, seven minutes.
4:55 p.m.
Conservative
Gary Schellenberger Conservative Perth—Wellington, ON
Thank you, and thank you to our witnesses today. I have one question about something that's been bothering me a wee bit ever since I realized it. The UN Security Council removed the International Criminal Court's jurisdiction over acts of current or former officials or personnel from states that contributed to the UN stabilization force and multinational force in Liberia, unless a contributing state consents to the ICC exercising jurisdiction.
This was Resolution 1497 of the Security Council in 2003. Nobody voted against it and there were three abstentions. This is an example of international law recognizing the importance of protecting citizens and armed forces from being tried for crimes in precarious situations where they are being sent to aid stabilization and peacekeeping efforts.
Would you argue that the spirit of clause 11 of Bill C-6, which would allow for the protection of Canadian Armed Forces personnel when aiding our allies in joint missions, is any different?
5 p.m.
Professor of Law, University of St. Thomas School of Law, As an Individual
I haven't looked at Resolution 1497, frankly, probably since 2003, so I would add that caveat. What clause 11 does is it frankly allows—it really comes close and I think others would say it goes to allowing—Canadian Armed Forces to violate the letter and spirit of the treaty, which says don't use cluster munitions. And there was in West Africa, I believe it was in Sierra Leone, if I'm not mistaken, an instance where some UN forces used cluster munitions and were condemned for that.
If you would like me to go back and take a look at Resolution 1497 and examine your question a little more closely, I could get you a written response if you'd like.
5 p.m.
Conservative
Gary Schellenberger Conservative Perth—Wellington, ON
That would be great if you could do that. I appreciate it.
Prime Minister, do you have a response?
5 p.m.
As an Individual
Just briefly, I can't recall and maybe never read the resolution in 2003, but in trying to advance the premises of the convention, are we going to say that the combined persuasive powers of Canada, Britain, France, Germany, and Australia could not persuade the United States that they also should join this convention, because there are plenty of generals in the United States who would say that this is military nonsense, that it's a most indiscriminate weapon, a weapon that angers civilians. And, of course, if the United States said they were not going to use these weapons, then our problems would disappear immediately.
In regard to the importunities of the International Criminal Court, I think if you're worried about getting caught up in that, I'm not too sure that the International Criminal Court would regard clause 11 as giving an adequate defence in the face of very large numbers of civilian or child casualties.
5 p.m.
Conservative
Gary Schellenberger Conservative Perth—Wellington, ON
Okay, thank you.
I'll pass it over to my colleague, Mr. Bezan. Thank you.
November 26th, 2013 / 5 p.m.
Conservative
James Bezan Conservative Selkirk—Interlake, MB
Thank you, Mr. Chair, through you I want to welcome our witnesses and thank them for their testimony today.
To both our witnesses, Mr. Wiebe and Mr. Fraser, under our Westminster style of Parliament and governance system, do you guys believe in the supremacy of Parliament in drafting legislation?
5 p.m.
As an Individual
Well, I do, yes. It's the government's job to work for Parliament.
5 p.m.
Conservative
James Bezan Conservative Selkirk—Interlake, MB
And under international conventions such as what we're discussing here today, it takes the Canadian Parliament to actually bring into force the convention under Canadian law through a bill in the House, correct?
5 p.m.
Conservative
James Bezan Conservative Selkirk—Interlake, MB
I've been listening to the debate today so far, and I'm getting a little concerned that we're looking at clause 11 as an area that empowers the Canadian military to contravene the convention.
What I see is that clause 11 is providing legal defence and definition to members of the Canadian Forces so that they can follow through with part 3 of article 21, to ensure that what they do in interoperability is fully defined and legally defensible in the event that they get pulled in front of a criminal court here in Canada, in front of the Judge Advocate General within National Defence, or even at the international level through either the international humanitarian court or the International Criminal Court.
Don't you also see that this is about providing some definition to what interoperability is?
I look at Canadian and Australian navies participating in a joint exercise with our American counterparts. Let's say we have an Australian frigate and a Canadian frigate providing protection to a U.S. aircraft carrier that's moving through the South China Sea and that may have cluster munitions on it. The way everybody has been talking here, everyone on a Canadian frigate or an Australian frigate would then be in violation of the convention and possibly up for charges under the Canadian Criminal Code if we don't define what is interoperability.
5 p.m.
As an Individual
I wouldn't have thought that really is the case, and article 21, part 3, I believe gives all the powers that are needed to enable reasonable cooperation with a non-state party. But what's the point of ratifying a convention and then putting so many exemptions in it that you're really destroying the purpose of the convention?
When you're saying that a Canadian officer can direct, or authorize, or request, you're really saying that the Canadian officer can totally destroy the purpose of the convention. Clause 11 goes so far.... I mean, Parliament is not meant to pass contradictory legislation. In this case, on the one hand it's saying yes, we like the convention, it's good, but on the other, we're not quite sure and we're just going to ignore it in a very wide set of circumstances.
I think you're also totally overestimating the likelihood of the United States using cluster munitions. I defy anyone to define “reasonable circumstances” in which there's going to be a reasonable military weapon, in a day and age when the whole thrust of military technology is to achieve more sized weapons, more accurate weapons.
5:05 p.m.
Conservative
The Chair Conservative Dean Allison
Thank you, Mr. Fraser.
Mr. Bezan, that's all the time we have.
We're going to move over to Mr. Garneau for the last round.
5:05 p.m.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
Thank you, Mr. Chair.
If I could try to follow up on the questioning of Mr. Bezan and Mr. Schellenberger and summarize why clause 11 is a problem. It goes beyond simply protecting Canadians serving in joint operations with other forces who might use cluster munitions, and it actually allows them to propose and authorize the use of cluster bombs when they're working with those other states that are not party to the convention. That's the difference. It's more than just protecting them because they happen to be in joint operations; it allows them to actually propose the use. That is the issue that we're discussing here in relation to the interpretation of convention article 21.
My first question is for Mr. Wiebe.
You mentioned the letter to Mr. Baird you co-signed about a year ago along with other people such as Earl Turcotte, who was Canada's chief negotiator. You stated very clearly that you believe the bill falsely interprets article 21 in the convention—which is what this is all about—as an exception to the ban on cluster munitions. Instead, you said in the letter that article 21 is meant only to clarify what Canada can still participate in—that it can still participate in combined operations with countries not party to the treaty so long as we continue to respect article 1 of the treaty, which states that every signatory will “never under any circumstances” use cluster munitions.
You've elaborated on that view. I'd like to hear what you think would be the consequences of Canada misinterpreting this clause.